Last
week, the United States Court of Appeals for the Fifth Circuit
released a decision that, in ordinary times, would have gotten a lot
of attention. The decision,
United States
v. Emerson, recognized that the Second Amendment to the
U.S. Constitution guarantees individual citizens a right to own guns.

It might seem
surprising that such a decision would be controversial; polls
routinely indicate that a large majority of citizens believe they have
a constitutional right to own a gun, and the language of the Second
Amendment itself would seem to support that belief. Yet, in the second
half of the 20th Century, the notion of a right to arms under the
Second Amendment got little respect among the chattering classes.

In the 1960s
and 1970s, we were often told that the Second Amendment didn't protect
a right of individuals to own guns, but rather only a "collective
right" of the states to have militias — or "state armies," as retired
Chief Justice Warren Burger called them in a Parade magazine
article often quoted by gun-control enthusiasts. Like collective
property in a Communist country, the "collective" Second Amendment
right belonged to everyone at once in theory, but to only the
government in practice, and thus was a nullity — the opposite of a
genuine right.

If you
disagreed with the "collective right," you were said to be either the
victim or perpetrator of a fraud, something cooked up by zealots at
the National Rifle Association as a means of deluding the masses.
Informed people, we were told, knew better.

The 1939
Supreme Court case
United States
v. Miller, we were told, had ruled that the Second
Amendment only protected the National Guard. And many lower federal
courts said so too.

Though there
have been a few
scholarly efforts to counter the academic individual-rights view,
they have fared poorly — particularly since their most famous star,
Michael Bellesiles's Arming America, has been exposed as a
hoax. If you read Bellesiles's footnotes, you discover that his
sources often do not support his claims, and in fact frequently
contradict his thesis. National Review's
Melissa Seckora discovered that Bellesiles claimed to have
examined 19th-century California probate records which had actually
been destroyed in the 1906 San Francisco earthquake.

So by the time
the Emerson case reached the Fifth Circuit, the stage had been
set for some serious rethinking. The court reviewed Millerand
found that, while the case was not entirely clear (UCLA
law professor Eugene Volokh teaches it as a model of ambiguity),
Miller was at the very least consistent with an individual
right, and certainly did not stand for a collective right.

The Fifth
Circuit reviewed the academic writing on the Second Amendment and
found that the work of the scholars mentioned above (and others)
supported the Second Amendment individual right. The court reviewed
the many decisions of lower federal courts and essentially agreed with
Professor Denning that their reasoning was flawed, superficial, and
unpersuasive.

The Fifth
Circuit concluded:

We reject the
collective rights and sophisticated collective rights models for
interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including
those not then actually a member of any militia or engaged in active
military service or training, to privately possess and bear their
own firearms, such as the pistol involved here, that are suitable as
personal, individual weapons and are not of the general kind or type
excluded by Miller.

The Fifth
Circuit did hold, however, that Dr. Emerson's Second Amendment rights
had not been violated. He had been disarmed by a combination of a
federal law and a state law, which (in the court's opinion) worked
together to prove that he posed a distinct threat of domestic
violence. Focusing on this result, Violence Policy Center tried to
spin the decision as a victory for gun control. The
VPC
celebrated the court upholding the particular gun law from a
facial challenge (even though the majority said that other persons,
based on their particular circumstances, might be able to prevail on a
constitutional challenge).

The VPC press
release concluded that "Justice Department prosecutors then appealed
the trial court's decision {finding the particular gun law facially
unconstitutional}, stating that it directly conflicted with
long-established legal precedent regarding the Second Amendment laid
down by the U.S. Supreme Court in United States v. Miller[307 U.S. 174 (1939)] as well as the language of the Second Amendment
itself, which speaks in terms of a limited right to keep and bear arms
in connection with service in a state militia." The VPC does not
mention that the Fifth Circuit wrote 84 pages explaining why
law-abiding, nonviolent citizens (not only those in "service in a
state militia") have a Second Amendment right to own handguns, rifles,
and shotguns. If the Emerson decision counts as a victory for
gun control, then Second Amendment supporters must hope for many more
such Pyrrhic victories for the Violence Policy Center.

In contrast,
the Brady Center had the intellectual honesty to
criticize the Fifth Circuit's opinion, rather than pretending that
a vigorous defense of individual Second Amendment rights was good news
for the gun-control lobby.

Others have
tried to spin the Court's decision as mere "dicta" — comments not
related to its holding and hence possessed of no binding authority —
on the basis that the statute was not struck down. The Court's
decision runs like this:

1. Emerson
has Second Amendment rights, because all Americans have individual
Second Amendment rights.

2. The
federal statute that says that persons subject to domestic-violence
restraining orders may not possess a gun is not — on its face — a
violation of the Second Amendment.

3. Applying
the statute to Emerson, personally, almost violates the Second
Amendment, but is "barely" constitutional, the Fifth Circuit ruled,
because Texas courts do have sufficient due process and required
findings of fact in order to issue domestic-violence restraining
orders. Texas case law mandates that temporary restraining orders
(like other preliminary injunctions) must only issue when "the
applicant is threatened with an actual, irreparable injury." The
Texas Supreme Court insists that "An injunction will not issue
unless it is shown that the respondent will engage in the activity
enjoined."

4. Therefore,
Emerson may be prosecuted for violating the federal law that
prohibits gun possession by persons who are subject to state-court
domestic-violence restraining orders.

In a concurring
opinion, Judge Parker wrote that the majority's detailed exposition of
the Second Amendment individual right, while not necessarily wrong,
was irrelevant "dicta." In other words, because the statute (as
applied to Emerson) didn't violate the Second Amendment anyway,
it didn't matter if there was an individual Second Amendment right,
and therefore the Court should not have discussed the Second Amendment
so extensively. In Parker's view, the majority's Second Amendment
analysis is not even binding law on future courts within the Fifth
Circuit (Texas, Louisiana, and Mississippi).

The majority
opinion, however, specifically refuted Parker on this point, and said
that the Second Amendment ruling was very much part of Emerson holding. Indeed, the Brady Center acknowledged that courts in the
Fifth Circuit would now adhere to individual Second Amendment rights,
although it also pointed out, quite correctly, that courts in other
Circuits do not have to. For example, a recent decision from the Tenth
Circuit (United States v. Haney, August 29, 2001)
rejects an individual Second Amendment right, as do decisions from
several other circuit courts in recent years.

But within the
Fifth Circuit, Second Amendment rights are now the law of the land.
This is hardly the first time a court has spelled out a binding rule
of law without handing the challenger a victory. A good example would
be the 1979
Jackson v.
Virginia (443 U.S. 307), where the Supreme Court held that
to satisfy due process, the state had to prove every element of the
crime beyond a reasonable doubt. The Court then found that the state
had actually done that in the case at hand, and denied Jackson's
petition for habeas corpus relief. But the due-process holding is
considered just that, a holding, and is followed. Just because Mr.
Jackson, on the particular facts of his case, would lose regardless of
whether the due-process rule applied did not mean the Court's
announcement of the due-process rule was dicta.

Dr. Emerson
will very likely petition the full Fifth Circuit to rehear his case en banc. (If the petition is granted, all judges on the circuit
would reexamine the case, rather than the three-judge panel which
decided the recent case. The Fifth Circuit is very closely divided
ideologically.) Eventually, Emerson might appeal to the Supreme Court,
though the Court is unlikely to be willing to take the case, since the
federal statute has not been declared unconstitutional.

What is clear,
however, is that gun-control groups and their revisionist "collective
rights" theory have been dealt a major setback, beyond any spin. As
Michael Barone writes:

It will now
be very hard — I would say impossible — for any intellectually
honest judge to rule that the Second Amendment means nothing.

This setback
comes on top of numerous defeats in their efforts to drive gun
manufacturers out of business through product-liability lawsuits, the
defeat (which even Democrats like Bill Clinton and Joe Lockhart
attribute to the gun issue) of Al Gore in the 2000 presidential
election, and their ongoing failure to win in the court of public
opinion.

As Barone adds:
"It is increasingly clear that the gun control advocates cannot
produce the safety they promise. . . . A meek, disarmed citizenry is
less safe than a proud, armed citizenry." At a time when airline
pilots are threatening to strike unless they are permitted to carry
guns, the notion of sensible gun rights appears especially appealing.

Many supporters
of Second Amendment rights would have preferred that the Fifth Circuit
adopt an even more protective view of Second Amendment rights, and
void the federal statute because it did not explicitly require
that the restraining order be based on findings of dangerousness.
Instead, the Fifth Circuit ruled that, in Emerson's case, Texas law
implicitly required such findings, and that was good enough. Yet
because the poorly drafted federal statute was upheld, the result
should be reassuring to the large majority of Americans who support
both Second Amendment rights and some gun controls. Gun-prohibition
advocates have long warned that recognizing an individual Second
Amendment right would prevent governments from disarming convicted
violent felons, or would create a right to own nuclear weapons or
bazookas. Most Second Amendment advocates, on the other hand, have
always noted that — just as with other constitutional rights like free
speech — the right to arms is not absolute, and is subject to
reasonable regulation.

People can
differ in good faith about what constitutes reasonable regulation. The
Emerson decision, even if affirmed by the Supreme Court, would
not foreclose advocates of gun control(as opposed to gun
prohibition) from making a case in favor of laws to disarm people who
are provably dangerous. The Fifth Circuit noted that the Second
Amendment allows "limited, narrowly tailored specific exceptions or
restrictions for particular cases that are reasonable and not
inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this
country."

What Emerson does in some federal courts for federal laws — as the state
constitutions of all but a few states already do, in state courts, for
state laws — is make it clear that ordinary, law-abiding people cannot
be prohibited from owning ordinary rifles, shotguns, and handguns.

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